A group of Detroit residents suing the city's Water and Sewerage Department may soon have their case heard by the Michigan Supreme Court. The plaintiffs, who allege that the department's drainage rate is an unlawful tax, finished briefing the court this week.
Under the current rate structure, DWSD charges homeowners, nonprofits, and businesses for every square foot of their property covered by an impervious surface, like a roof, driveway, or parking lot. The department’s philosophy: If the ground can’t soak up rainwater or snowmelt, then it’s running into Detroit’s combined sewers. That places a burden on a system that is federally required to treat all stormwater and sewage before discharging it into public bodies of water.
For many Detroit residents and business owners, however, the fee — slated to generate more than $150 million a year — places an additional burden on a city with a shrinking population and entrenched water affordability issues.
Lisa Walinske represents Detroit residents suing DWSD over the rate. In November, the Michigan Court of Appeals ruled against them, concluding that DWSD’s drainage rate is indeed a fee, not a tax. That distinction of language matters. If the court rules it is a tax, state law would require voter approval.
In her interview with Stateside, Walinske said that even in the Court of Appeals’ ruling against the plaintiffs, it agreed that the fee is involuntary. A customer must pay it even if they do not receive any benefit from the service.
“Because there’s this compulsory nature to [the charge],” Walinske said, “we say it’s a tax.”
Stateside reached out to DWSD for comment on the case. The department wrote in an email:
“We were pleased with the Court of Appeals ruling on the drainage charge and await the Michigan Supreme Court’s opinion on this case."
Detroit is far from the only community in Michigan dealing with stormwater infrastructure issues, and how to pay for them.
Greg Kacvinsky is an engineer and practice leader for stormwater management for OHM Advisors. He says the state is facing two major issues:
1.) The stormwater infrastructure is aging, and there are fewer funds available to repair or replace it.
2.) These problems are exacerbated by heavier rainfalls that cause more frequent flooding and overflows of untreated sewage and stormwater into rivers and lakes.
“The pipes that we put in the ground 50 years ago were designed under a different set of criteria,” Kacvinsky said. “And so when rainfall changes, and when climate changes, the system doesn’t provide the same level of service that it used to.”
As problems of flooding and overflow become more common, communities butt up against the reality of having to pay for repairs and improvements.
“Where communities used to be able to rely on money coming down, or raining down, from the federal government, now the federal government is there to say, we’ll give you money…but you’re gonna pay us back,” Kacvinsky said.
Kacvinsky is hopeful that the state will pass legislation offering a roadmap for communities to set up separate stormwater utilities that would fund infrastructure upgrades. Right now, some communities are hestiant to do so because they fear lawsuits like the one filed against the DWSD.
In the meantime, Kacvinsky said Michiganders need to understand that paying more for infrastructure and utilities is the new reality.